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Florida Bar Will Support Gay AdoptionThe Florida Bar is coming out in a big way — for gay adoption.
The Bar’s board of governors voted unanimously to file an amicus brief
before the 3rd District Court of Appeal supporting a Miami-Dade circuit
judge’s ruling that declared unconstitutional the state’s ban on gay
adoptions.
“We thought it was appropriate to defend the judge’s decision,” said
Nancy Gregoire, a family section member and a partner with Kirschbaum
Birnbaum Lippman & Gregoire in Fort Lauderdale. “In my mind,
speaking only for myself, it was the right thing to do and well past
its time.”
The Bar’s board of governors voted unanimously to file an amicus brief
before the 3rd District Court of Appeal supporting a Miami-Dade circuit
judge’s ruling that declared unconstitutional the state’s ban on gay
adoptions.
“We thought it was appropriate to defend the judge’s decision,” said
Nancy Gregoire, a family section member and a partner with Kirschbaum
Birnbaum Lippman & Gregoire in Fort Lauderdale. “In my mind,
speaking only for myself, it was the right thing to do and well past
its time.”
ircuit Judge Cindy Lederman ruled in November that the state’s ban on gay adoption was unconstitutional.
Forty-two of 52 board members participated in the Friday vote. Lt. Gov.
Jeff Kottkamp’s chief of staff, Larry Ringers, filed the only recusal.
Bruce Rogow, a prominent Constitutional lawyer and professor at Nova
Southeastern University’s law school, said an amicus brief from The Bar
could provide a persuasive argument in favor of gay adoption.
“It would be influential. It will say to the court that the leadership
of The Bar agrees with the concept, and in these kinds of cases, the
law can be made to do what you want it to do,” he said. “This is more
of a policy situation than a constitutional argument, but we always
wrap policy around constitutional arguments.”
The family law sections five-page request to the board of governor’s
offered an emotionally compelling argument in favor of adoption by the
gay North Miami couple suing to overturn the ban.
They took in two brothers — named John and James Doe in court papers —
one at age 4 years and the other at 4 months as foster children in 2004.
“John was wearing a dirty adult-sized T-shirt and sneakers four sizes
too small. Both boys suffered from untreated scalp ringworm. James also
had an untreated ear infection. John did not speak,” said the section’s
written request to get involved. “The boys left a world of chronic
neglect, emotional impoverishment and deprivation to enter a new world
that was nurturing, safe, structured and stimulating. They have lived
and thrived in that world ever since.”
The 3rd DCA is accepting briefs in the case.
The family section’s brief has not been drafted yet.
Monroe Circuit Judge David Audlin Jr. issued a similar ruling on the
constitutionality of the state law banning gay adoption last September,
but that case ended when the parent opted to become a permanent
guardian, which is legal in Florida, rather than pursue adoption.
“We no longer had custody of the child and no longer had custody of the
case,” said Neil Skene, special counsel to Department of Children and
Families in Tallahassee. The difference in the cases is why the state
appealed the Miami-Dade case but not the Monroe case.
“We need an appellate resolution to the case, and we don’t have any
choice under the statute. The statute doesn’t give us any choice when
the parent is gay,” Skene said. He declined to comment on other issues
involving the Miami-Dade case.
Chief Deputy Solicitor General Louis Hubener, who represented the state
in a part of the proceedings, declined to comment, saying he had not
heard about The Bar’s vote.
The gay adoption ban has been on the books in Florida since 1977 when
ultra-conservative Anita Bryant successfully led the charge to overturn
a Dade County ordinance prohibiting discrimination based on sexual
orientation.
Florida is the only state with a complete ban on adoptions by gays.
In Florida, “no matter what, if the person is gay, they cannot adopt.
And the judge has no leeway,” said Bar governor Ervin Gonzalez, a
partner with Colson Hicks Eidson in Coral Gables who was a key
supporter of filing the amicus brief.
Mississippi has a softer ban that gives a judge discretion in adoption
rulings, and some states still have de facto bans limiting adoptions to
married couples, he noted.
At the heart of the adoption issue is the question of whether a gay
couple can enjoy the same rights and privileges as a straight couple —
an issue that has drawn increasing national attention as states grapple
with the question of gay marriage.
But Gonzalez said the issue shouldn’t be divisive.
“We’re supporting equal protection under the law, due process under the
law and the right for the judge to make a decision of what’s in the
best interest under the law,” he said. “You have to support
constitutional freedoms.”
The Bar board vote is significant since it is part of a state agency
that regulates the legal profession and is giving its tacit approval to
a position defying the will of the state Legislature.
About five years ago, The Bar’s family section requested permission to
approach the Legislature in opposition to the ban, but The Bar’s board
of governors denied permission.
“This is different now. Now we have a judicial decision that we’re trying to defend,” Gregoire said.
Calls to the American Civil Liberties Union, which is representing the couple, were not returned.
“We are very happy that the Board of Governors voted unanimously,” said
Scott Rubin, chairman of The Bar’s family section. “It’s the right
thing to do for the children of Florida.”